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The Inspector General Should Review the FBI Counterintelligence Probe into Trump - Lawfare
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President Trump & FBI -- Counterintelligence Investigation Was Prudent and Proper
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Michael Novakhov - SharedNewsLinks℠ 
The Inspector General Should Review the FBI Counterintelligence Probe into Trump - Lawfare

Michael_Novakhov shared this story from Lawfare.
Like everyone else on Lawfare, I was struck by the recent New York Times story about the FBI opening a counterintelligence investigation into President Trump after he fired former FBI Director Jim Comey. It adds to my unease, not about President Trump but about the FBI.
In the end, the story probably doesn’t tell us anything new about President Trump. If the investigation had turned up evidence in the last 18 months that the president was working for Russia and covering his tracks from investigators, we’d have the evidence by now, not just a story about investigators’ suspicions in mid-2017.
What’s most troubling about the story is what it seems to say about the FBI and its leadership. I agree with Jack Goldsmith that the story is deeply discomforting. There is only one American agency with a history of destroying American politicians to serve its own bureaucratic interests. FBI Director J. Edgar Hoover used illegal wiretaps and other files on political leaders to ensure his power.  When he was gone, Mark Felt’s effort to succeed him included leaks that destroyed Richard Nixon. Now we hear that the bureau opened a counterintelligence investigation of President Trump on the politically explosive premise that he was doing Putin’s bidding. I don’t think that’s an accident. We like to say that no president is above the law. The unspoken corollary is that no president is above the FBI. If so, we need to be damn careful about how the FBI uses that power.
Like Goldsmith, I’m a long-time admirer of the bureau. It rarely has any doubt about who the bad guys are or what they deserve—relentless, overwhelming, and street-smart pursuit within the law. But the bureau’s self-certainty has risks, summed up by the old saw that for the FBI there are only two kinds of people: agents and suspects.
And, like Goldsmith, I think the Trump campaign and Russian interest in it posed an impossible problem for the bureau and other intelligence agencies. There was too much smoke to ignore. Russia’s effort to influence the campaign had to be probed. But the decision to add President Trump as an individual counterintelligence subject of the investigation is a lot harder to justify,
There are two possible motives for adding the president to the counterintelligence probe. One—call it the “standard narrative”—is that the president’s firing of Jim Comey was evidence that the president intended not just to obstruct the criminal probe of his campaign but also to cover up a compromising relationship with Putin. The alternative narrative is that expanding the probe to the president himself was simple bureaucratic revanchism: “You take out our guy and we’ll take you out.” I’m guessing there was a mix of motives here, but for discussion purposes, let’s treat them as competing narratives.
Let’s start with the standard narrative: According to the New York Times, former FBI general counsel Jim Baker summed up the case for investigating the president in congressional testimony: “Not only would it be an issue of obstructing an investigation, but the obstruction itself would hurt our ability to figure out what the Russians had done, and that is what would be the threat to national security.” That seems like a fair statement of the justification—and a pretty thin basis for something as momentous as launching a counterintelligence probe of the president. Was Jim Comey himself personally running the investigation, so his removal would leave it crippled? Wouldn’t any attack on the counterintelligence investigation have required cooperation from the men who replaced Comey—first Andrew McCabe, and later Chris Wray?  Was the bureau going to investigate them, too? Of course not.
Why not let the criminal investigation play out and expand it to national security if and when the evidence justified it? It’s hard to see what extra authorities agents would gain from the expansion—unless they planned on seeking a FISA warrant to wiretap the president. I’m guessing we’d have heard about that if they did. So what was the point? No one seems to have taken seriously the question, “Why do we need to take this norm-busting step?”
What about the alternative narrative, in which the bureau comes off as more tribal than magisterial? Let’s start with Andrew McCabe, who made this call as acting FBI director but whose name is mysteriously missing from the Times account. He was seen inside the bureau as Comey’s guy, accelerated into the deputy slot because of the director’s favor.  And he had reason to resent the conservatives who had embarrassed him over his wife’s campaign for the Virginia legislature and its ties to Hillary Clinton fundraisers. Equally important, during the week between Jim Comey’s firing and the naming of Robert Mueller as special counsel, it seems as though the entire Justice hierarchy was losing all sense of proportion in the face of President Trump’s own norm-breaking. Deputy Attorney General Rod Rosenstein was talking openly to his aides about wearing a wire to his meetings with the president. It’s fair to say that Justice and the bureau thought for a time that they were at war with the president, and when those agencies go to war, the weapons they use are investigations.
In the real world, of course, those two competing narratives braid around each other; they are less competing than complementary. The decision was probably a bit of “just doing our job” and a bit of “don’t screw with us.” If I had to guess at the decision’s origins, I’d look to Jim Comey’s statement that he had a friend leak the details of Comey’s meetings with the president in the hope that Rod Rosenstein would appoint a special counsel. I doubt he hid this notion from the team he left behind at the bureau. And that team could reasonably assume that the special counsel would inherit the existing FBI investigation as it stood; so the decision to quickly expand the probe could have been a way of ensuring the widest possible latitude for the special counsel’s office.
But who knows? And that’s what makes me uneasy. The political and bureaucratic motives mixed into this incident are reminiscent of the motives mixed into the decision to launch an investigation of Russia and the Trump campaign, the decision to rely on Christopher Steele’s research despite his partisan funding, and the decision to interrogate national security adviser Michael Flynn in the slipperiest of fashions. There are reasons why all of these things might have seemed necessary to honest, committed cops just doing their job. But they also offer a roadmap for how to abuse counterintelligence authority to serve partisan ends—a roadmap that more or less begins where the civil liberties protections of the 1970s end.
My concern is that we’re not taking that risk seriously because so many former officials and commentators believe that President Trump deserves all this and more. Some of them still hope that the election of 2016 can be undone, or at least discredited. This leads to a perseverating focus on leaks and scraps from the investigation and a determined lack of concern about the investigation’s sometimes tawdry origins. (Yes, I’m talking to you, #BabyCannon!)
If we’re going to prevent future scandals, we need to look at both. We need to know the answers to a lot of questions that are not being seriously addressed today: To what extent was politics involved in the decision to open the Trump-Russia investigation; to what extent did politics drive its direction; to what extent was politics involved in the Obama administration’s transition intelligence leaks; and, finally, to what extent was politics involved in adding the president to the counterintelligence probe?
The only independent review of any of these questions seems to be the investigation launched by Justice Department Inspector General Michael Horowitz. He’s examining the FISA application for Carter Page. That’s a good start, but it’s only a start. It’s a commonplace insight that President Trump’s norm-defying conduct has triggered norm-defying payback by others. I’m sure we’re going to learn about the first, but we can’t ignore the second.
It’s time to expand the Horowitz inquiry, or something like it, into all of these events.
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Michael_Novakhov shared this story from "counterintelligence investigations in history" - Google News.

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President Trump & FBI -- Counterintelligence Investigation Was Prudent and Proper

Michael_Novakhov shared this story from National Review.

Who gave the FBI the power to investigate the president? The president did.Let’s begin with a series of difficult questions. What should the FBI do when it possesses information that causes trained counterintelligence officials to fear that the president of the United States is — either knowingly or unknowingly — falling under the influence of a hostile foreign power? Should the FBI investigate the man who ultimately runs the agency? Can it investigate a man who has considerable power even to define American national interests?
I’d suggest that these questions, for now, have been asked and answered by the president. Or, more specifically, by the presidency. Executive Order 12333 — drafted in 1981, amended in 2003, 2004, and 2009, and still in effect today — defines the executive branch’s counterintelligence mission and allocates responsibility for carrying out that mission. And under that executive order, the president has defined counterintelligence and has precisely delegated specific tasks to different executive branch agencies.
First, the definition of counterintelligence is as follows:
Counterintelligence means information gathered and activities conducted to identify, deceive, exploit, disrupt, or protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or persons, or their agents, or international terrorist organizations or activities. [Emphasis added.]
The highlighted words are particularly important. The focus is on the effort of the foreign power. The executive order allocates responsibility for the counterintelligence mission based on the relevant statutory framework and mission of each agency. Here’s what it has to say about the responsibilities of the FBI:
(g) INTELLIGENCE ELEMENTS OF THE FEDERAL BUREAU OF INVESTIGATION. Under the supervision of the Attorney General and pursuant to such regulations as the Attorney General may establish, the intelligence elements of the Federal Bureau of Investigation shall:
(1) Collect (including through clandestine means), analyze, produce, and disseminate foreign intelligence and counterintelligence to support national and departmental missions, in accordance with procedural guidelines approved by the Attorney General, after consultation with the Director;
(2) Conduct counterintelligence activities; and
(3) Conduct foreign intelligence and counterintelligence liaison relationships with intelligence, security, and law enforcement services of foreign governments or international organizations in accordance with sections 1.3(b)(4) and 1.7(a)(6) of this order. [Emphasis added.]
There is no exemption in this order applicable to the actions or conduct of a president or of any other member of the executive branch. If Trump wanted to amend this order to exempt himself and key officials from the FBI’s counterintelligence mission, he could — so long as his order didn’t conflict with any constitutionally valid federal statutes.
But for now, this executive edict exists, and it specifically orders the FBI to carry out its part of the American counterintelligence mission.
Why emphasize this order? Because it helps us understand why the FBI would believe it had the authority andresponsibility to allegedly open a counterintelligence investigation of the president. The New York Times bombshell report has triggered a round of important debate and thoughtful criticism of the FBI, including from two men I greatly respect — Harvard Law School’s Jack Goldsmith and my boss at National Review, Rich Lowry. Professor Goldsmith and Lowry both raise interesting and important questions about the FBI’s role.
Let’s look at one of Professor Goldsmith’s concerns first. After discussing how the FBI defines its counterintelligence mission in part as protecting against threats to American national security, the professor raises this key point:
Because the president determines the U.S. national security interest and threats against it, at least for the executive branch, there is an argument that it makes no sense for the FBI to open a counterintelligence case against the president premised on his being a threat to the national security. The president defines what a national security threat is, and thus any action by him cannot be such a threat, at least not for purposes of opening a counterintelligence investigation.
I’d argue that this concern is answered by the very definition of counterintelligence quoted above. The Attorney General’s Guidelines for Domestic FBI Operations define a “threat to national security” in part as “espionage and other intelligence activities, sabotage, and assassination, conducted by, for, or on behalf of foreign powers.” The definition isn’t dependent on the policy but rather the prime mover. Is it the president or the foreign power?
If Russia has engaged in “espionage” or “other intelligence activities” to induce the president (knowingly or unknowingly) to act on its behalf, then those actions (and their effects) are within the scope of the FBI’s mission. It’s black-letter law under a currently operative presidential order.
In addition, the existence of this order helps respond to Rich’s concern here: “The Times story is another sign that we have forgotten the role of our respective branches of government. It is Congress that exists to check and investigate the president, not the FBI.” But through Executive Order 12333, the president gave the FBI its current role — and explicitly subjected it to attorney-general oversight.
And that attorney-general oversight (or, in this case, deputy-attorney-general oversight, since the attorney general had recused himself from the Russia investigation) is critical. It’s the role of the man appointed by the president to prevent the parade of horribles that could easily flow from FBI abuses. We don’t want presidents placed under FBI investigation simply because the bureau might believe the president’s actions are dangerously wrong.
Rich rightly notes:
The president gets to fire subordinate executive-branch officials. He gets to meet with and talk to foreign leaders. He gets to make policy toward foreign nations. Especially important to the current investigation, he gets to say foolish, ill-informed, and destructive things.
Yes, he gets to do all those things, but according to the applicable law, when confronted with sufficient evidence of foreign intelligence activities, the FBI has the authority and obligation to investigate whether the president is doing those things on behalf of a foreign power.
It’s important to pause and note that despite an intense amount of coverage and reporting on Russian and Trump-team activities during and after the campaign, we do not yet know everything the FBI knew (or, critically, thought it knew) when it allegedly opened its counterintelligence investigation. Firing James Comey and bragging to the Russians that he did it because of the Russia investigation is but one odd event. Sharing classified information with Russians was another. We now know about many other odd occurrences that had happened by 2017 (and this is a very partial list):
• Trump’s son, son-in-law, and campaign chair met with a purported Russian representative for the purpose of obtaining negative information about Hillary Clinton, as part of an explicitly-described Russian effort to help Trump.
• Trump was pursuing an extraordinarily lucrative business deal in Moscow well into the 2016 campaign, and his lawyer and “fixer” was in contact with a representative of the Putin regime.
• Trump hired Paul Manafort as campaign chair, a man with longstanding ties to a Russian-supported Ukrainian strongman who was also deeply in debt to a Kremlin-tied Russian oligarch.
• Manafort shared polling data during the presidential campaign with Konstantin Kilimnik, a person “tied to Russian intelligence.”
• Russian operatives reached out to Trump-campaign official George Papadopoulos with an offer of sharing “dirt” on Hillary in the form of “thousands of emails.”
• Trump’s key national-security aide, Michael Flynn, had been paid tens of thousands of dollars by Kremlin-backed interests.
• Longtime Trump friend and adviser Roger Stone — a man who the special counsel’s office alleges was in “regular contact with senior members of the Trump campaign” — also reportedly made substantial efforts to communicate with Wikileaks.
The list could easily continue without even touching the dubious Carter Page FISA application and the suspect Steele dossier. Intelligence agencies concluded that Russia developed a clear preference for Trump over Hillary, so I’d be stunned if a competent counterintelligence professional wasn’t concerned about the extent of Russian influence over the campaign and, indeed, over Trump himself.
At the very least, if we’re concerned about negative precedents, shouldn’t we be also concerned — perhaps even more concerned — by a presidential campaign that featured such extensive clandestine ties (including financial ties) with a hostile foreign power than we are by a federal agency fulfilling its president-defined legal mandate, under president-designated Department of Justice oversight?
It is quite fair to say (and obvious as you read the relevant guidelines) that counterintelligence responsibilities were not allocated with a potential investigation of the president in mind. It seems not to have crossed previous presidents’ minds that there could exist credible concerns that a president would knowingly or unknowingly act on behalf of a hostile foreign power.
Sadly, now we know those credible concerns can exist. It would be rational and wise for a future president and Congress to work together to more precisely define and establish worst-case counterintelligence investigation procedures applicable even to presidents. In the meantime, the FBI can apply only the guidelines and orders that exist, and the available evidence suggest that by opening an investigation of the president it was, ironically enough, following presidential orders. The FBI wasn’t abusing its power. It was fulfilling the mission the president gave it.
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In the Shadow of the Sphinx: A History of Army Counterintelligence (eBook) | U.S. Government Bookstore

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In the Shadow of the Sphinx: A History of Army Counterintelligence (eBook)
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In the Shadow of the Sphinx: A History of Army Counterintelligence (eBook)
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For nearly a century, counterintelligence has played a crucial role in providing force protection to the Army while keeping the Nation’s most guarded secrets.  Today, it continues to play an integral part in America’s first line of defense in the war against global terrorism. In the Shadow of the Sphinx, an absorbing new history of Army counterintelligence, now reveals the real stories of the soldiers and civilians of Army counterintelligence on the front lines of three major wars and the shadowy Cold War conflict of spy versus counterspy.

Explosions in American cities and spies crossing international borders are not unique to the post 9-11 world. In the Shadow of the Sphinx traces the origins of Army counterintelligence to the need to counter such threats as far back as World War I.  This authoritative, profusely illustrated official history follows the Army’s shadowy war of spies versus spies through two World Wars, Korea, Vietnam, and the Cold War.

In the Shadow of the Sphinx includes fascinating tales of:

True spy stories from World War I through the end of the Cold War
Securing the Manhattan Project
Handling denazification in post-war Germany
Grappling with the emerging threat of communism

And much more!

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Cold War CIA Intelligence Failure

Michael_Novakhov shared this story from Washington Free Beacon.

Former CIA agent Aldrich AmesFormer CIA agent Aldrich Ames / AP
BY: Bill Gertz
The CIA was fooled by scores of double agents pretending to be working for the agency but secretly loyal to communist spy agencies during the Cold War and beyond, according to a former CIA analyst, operations officer, and historian.
The large-scale deception included nearly 100 fake CIA recruits in East Germany, Cuba, as well as the Soviet Union (and later Russia) who supplied false intelligence that was passed on to senior U.S. policymakers for decades.
"During the Cold War, the Central Intelligence Agency bucked the law of averages by recruiting double agents on an industrial scale; it was hoodwinked not a few but many times," writes Benjamin B. Fischer, CIA’s former chief historian.
"The result was a massive but largely ignored intelligence failure," he stated in a journal article published last week.
The failure to recognize the double agents and their disinformation designed to influence U.S. policies "wreaked havoc" on the agency, Fischer wrote in the International Journal of Intelligence and Counterintelligence.
Fischer stated that the failure to prevent the double agent deception was dismissed by the CIA as insignificant, and that congressional oversight committees also did not press the agency to reform its vetting processes.
Fischer was a career CIA officer who joined the agency in 1973 and worked in the Soviet affairs division during the Cold War. He later sued the agency in 1996, charging he was mistreated for criticizing the agency for mishandling the 1994 case of CIA officer Aldrich Ames, a counterintelligence official, who was unmasked as a long time KGB plant.
Critics have charged the agency with harboring an aversion to counterintelligence—the practice of countering foreign spies and the vetting of the legitimacy of both agents and career officers. Beginning in the 1970s, many in the CIA criticized counter-spying, which often involved questioning the loyalties of intelligence personnel, as "sickthink."
The agency’s ability to discern false agents turned deadly in 2009 when a Jordanian recruit pretending to work for CIA killed a group of seven CIA officers and contractors in a suicide bombing at a camp in Afghanistan.
Double agents are foreign nationals recruited by a spy service that are secretly loyal to another spy agency. They are used to feed false disinformation for intelligence and policy purposes and to extract secrets while pretending to be loyal agents.
Double agents are different than foreign penetration agents, or moles, who spy from within agencies while posing as career intelligence officers.
The CIA’s first major double agent failure occurred in Cuba and was revealed by Cuban intelligence officer Florentino Aspillaga, who defected to the CIA in 1987.
Aspillaga revealed that some four-dozen CIA recruits over a 40-year period secretly had been working for the communist government in Havana and supplying disinformation to the CIA.
Later that year, Cuban state television confirmed the compromise in a documentary revealing the existence of 27 phony CIA agents, along with their secret CIA communications and photographic gear.
The intelligence failure was covered up by the congressional intelligence oversight committees, according to Fischer, who quoted former CIA officer Brian Latell.
In East Germany, all the recruited CIA agents working there were found to be double-agents working secretly for the Ministry of State Security spy service, also known as the Stasi.
According to two East German Stasi officers, Klaus Eichner and Andreas Dobbert, operating against CIA without inside sources was difficult.
"Naturally we tried but did not succeed in placing agents in the CIA," they stated in their 2009 book. "Nevertheless, there was not a single CIA operation on [East German] territory that we were not able to detect using [double agents] and counterespionage operations."
Fischer said the controlled East German assets "rendered U.S. intelligence deaf, dumb, and blind."
The late East German spymaster Markus Wolf also wrote in his memoir that by the late 1980s "we were in the enviable position of knowing that not a single CIA agent had worked in East Germany without having been turned into a double agent or working for us from the start."
"On our orders they were all delivering carefully selected information and disinformation to the Americans," Wolf said.
Wolf had been able to identify a CIA officer working in West Germany who was recruiting East Germans and then dispatched double agents to the officer.
Fischer says former U.S. intelligence officials confirmed the failure, including Bobby Ray Inman, a former deputy CIA director, who said the double agent fiasco spanned over 20 years.
Former CIA Director Robert Gates also said the agency was "duped by double agents in Cuba and East Germany.
Fischer states that the East German failure was "wall-to-wall," from the lack of advance warning in 1961 of plans to build the Berlin Wall, to 1989, when cable television provided CIA with the first word that the wall was coming down.
From 1961 to 1989, all CIA intelligence on East Germany was "no more and no less than what Wolf wanted it to know," he said.
The last major double agent failure took place in the Soviet Union and after its 1991 collapse in Russia.
It was revealed after the 1994 arrest of CIA counterintelligence officer Aldrich Ames for spying for Moscow since the 1980s.
Ames helped the KGB expose all Soviet and East European intelligence operations, allowing Moscow to pass "feed material"—a combination of accurate information and false data—through controlled double-agents.
The KGB operation involving Ames began in 1986 and continued through 1993, when he was handled by the post-Soviet SVR intelligence service.
During that period, the KGB sent a false defector to the CIA, Aleksandr Zhomov, who fooled the agency into believing he could supply information on how the KGB had unmasked and arrested almost all CIA recruited agents during the mid-1980s.
Zhomov, who was paid an estimated $1 million by the CIA, made the fake offer in 1987 and according to Fischer, was dispatched by Moscow in a bid to protect Ames from being discovered as the source of the earlier leak.
In 1995, the CIA admitted that for eight years since 1986, it produced highly classified intelligence reports derived from "bogus" and "tainted" sources, including 35 reports that were based on data from double agents, and 60 reports compiled using sources that were suspected of being controlled by Moscow.
The false information reached the highest levels of government, including three presidents—Ronald Reagan, George H.W. Bush, and Bill Clinton.
The CIA’s inspector general urged reprimands for several senior CIA officers and directors William H. Webster, Robert M. Gates, and R. James Woolsey.
The three former directors claimed they should not be blamed for the compromises because they were unaware of them.
Fischer said the CIA defended its recruitment of bogus agents by asserting that even while controlled the doubles provided some good intelligence.
A major problem for Soviet operations was the failure of agency officers to successfully conduct direct recruitments of agents to work for the agency. Instead, the CIA was reliant on "walk-ins," or volunteers, a practice that increased the vulnerability to foreign double agent operations.
Fischer blamed the bureaucratic culture and careerism at CIA for the failure to prevent the double agent disaster.
"The case of the KGB-SVR double agents from 1986 to 1994 is egregious," he said, "not the least because it revealed that deceptive practices transcended the Cold War."
The CIA continued to handle agents the CIA knew were fraudulent and allowed the division in charge of Soviet affairs to "cover up the loss of all its bona fide agents," Fischer concluded.
"Yet none of these revelations resulted in a serious inquiry into the troubles that doubles cause," he said. "To paraphrase Lord Acton, secret power corrupts secretly."
A CIA spokesman declined to comment.
Angelo Codevilla, a former Senate Select Committee on Intelligence staff member, said he was familiar with some of the details on CIA double agents during his intelligence career but said some information in the article was new.
"Mitigating the dismay at the total corruption—moral, intellectual, and political—of the agency is my surprise that a man in Fischer’s position saw the reality so very clearly and so reports it," said Codevilla, senior fellow at the Claremont Institute, and professor emeritus of International Relations at Boston University.
Kenneth E. deGraffenreid, a former senior White House intelligence official during the Reagan administration, said Fischer and other former intelligence officials have revealed that large-scale communist intelligence service operations to undermine the CIA show "the story of Soviet-era espionage operations that we’ve understood to this point is probably deeply flawed."
"What we thought was true from the Cold War spy wars was largely wrong, and that says that the counterintelligence model we had was wrong," said deGraffenreid. "And therefore because we’ve not corrected that problem we’re in bad shape to deal with the current challenges posed by terrorists and spies from Iran, Russia, China and others."
David Sullivan, a former CIA analyst and retired Senate Foreign Relations Committee staff member, said Fischer correctly notes that "intelligence officers have a saying that the only thing worse than knowing there is a mole in your organization is finding the mole."
CIA fooled in massive counterintelligence failure, former officer writes – World Tribune Life

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Bill Gertz, Washington Free Beacon
The CIA was fooled by scores of double agents pretending to be working for the agency but secretly loyal to communist spy agencies during the Cold War and beyond, according to a former CIA analyst, operations officer, and historian.
James Jesus Angleton.James Jesus Angleton.
The large-scale deception included nearly 100 fake CIA recruits in East Germany, Cuba, as well as the Soviet Union (and later Russia) who supplied false intelligence that was passed on to senior U.S. policymakers for decades.
“During the Cold War, the Central Intelligence Agency bucked the law of averages by recruiting double agents on an industrial scale; it was hoodwinked not a few but many times,” writes Benjamin B. Fischer, CIA’s former chief historian. “The result was a massive but largely ignored intelligence failure,” he stated in a journal article published last week. …
Fischer was a career CIA officer who joined the agency in 1973 and worked in the Soviet affairs division during the Cold War. He later sued the agency in 1996, charging he was mistreated for criticizing the agency for mishandling the 1994 case of CIA officer Aldrich Ames, a counterintelligence official, who was unmasked as a long time KGB plant.
Critics have charged the agency with harboring an aversion to counterintelligence — the practice of countering foreign spies and the vetting of the legitimacy of both agents and career officers. Beginning in the 1970s, many in the CIA criticized counter-spying, which often involved questioning the loyalties of intelligence personnel, as “sickthink” [a term popularized as it concerned the legendary James Jesus Angleton who was chief of the Central Intelligence Agency’s Counterintelligence Staff from 1954 to 1975 before being forced to resign when the CIA moved to downsize the counterintelligence operation.]
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How the FBI Failed in Counterintelligence But Promoted the Politics of McCarthyism in the Cold War Years — Central Intelligence Agency

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Intelligence in Recent Public Literature

By Athan Theoharis.  Chicago:  Ivan R. Dee, 2002.  307 pages.
Reviewed by David Robarge

Since the 11 September 2001 attacks by al-Qaida, the FBI has taken on a counterterrorism function that more closely resembles espionage and counterintelligence than traditional law enforcement.  The Bureau
has had trouble managing this transition from “cop” to “spook,” and it undoubtedly will encounter more problems now that its counterterrorism responsibilities have grown under the new homeland security legislation.  Counterintelligence and counterterrorism share many operational characteristics, as well as a sense of urgency and a high frustration factor that can lead to procedural corner cutting.  While we construct a new domestic security apparatus to help fight international terrorism, we should pause to examine Athan Theoharis’s Chasing Spies, a useful, although at times tendentious, cautionary tale about how the FBI conducted counterintelligence against the Soviets from the 1930s through the 1950s.
Theoharis—a historian at Marquette University and a prolific scholar and critic of the FBI—wants us to be aware of what he sees as the FBI’s checkered record on hunting Soviet spies during those years, when, he argues, counterintelligence quickly mutated into (often unlawful) surveillance of dissidents, nonconformists, “unfriendly” politicians, and sundry “radicals.”  As Bureau investigators threw their nets farther and wider to snare Kremlin agents, they became seized with finding “the enemy within” because their superiors, especially J. Edgar Hoover, pursued an ideological agenda that subordinated law enforcement to anticommunism.  That history, Theoharis suggests, provides a lesson for us in the current climate of anxiety and suspicion:  Counterterrorism directed at mysterious foreigners with alien creeds could easily lapse into the same excesses that anti-Soviet counterintelligence did not so long ago.
Although Hoover is gone, Theoharis argues that his legacy of politicized counterintelligence may endure.  With the cases of Wen Ho Lee, Robert Hanssen, Timothy McVeigh, and the Ruby Ridge militia in mind, the author has observed, in interviews about homeland security, that:  “If you are going to give agents broad authority, how do you keep them from roaming far afield?  The history is not pretty.” [1]
In Chasing Spies, Theoharis uses mostly FBI releases secured under the Freedom of Information Act and declassified decryptions of KGB messages to move the discussion of Soviet espionage in America into territory familiar to him:  what the Bureau did about Kremlin spying, and why.  According to his research, the FBI’s investigations of Soviet espionage in the 1930s, 1940s, and 1950s were far more extensive and intrusive than we have previously known, yet few spies were caught and even fewer tried.  Possible reasons are:  (1) The Bureau was incompetent; (2) Democratic administrations, out of indifference or partisanship, inhibited the FBI from investigating Soviet espionage; (3) Soviet operational security was very good; (4) there were not that many Soviet spies to catch; (5) the Bureau’s information was collected illegally and could not be used in court; and/or (6) the FBI was using its counterintelligence capabilities for purposes other than finding Kremlin agents and their supporters.  Theoharis’s assessment:  mostly (5) and (6), with a bit of (3) and (4) thrown in, as he concedes that “Moscow rules” were tough to work against and he tends to play down the scope and effect of Soviet espionage in America.
Between 1936 and 1952, the Bureau’s budget ballooned from $5,000,000 to $90,000,000, and the staff went from 1,580 employees to 14,657.  According to Theoharis, FBI managers used some of the new money and personnel to conduct not only standard investigations but also an unprecedented array of then-illegal operations—break-ins, wiretaps, bugging, and mail opening—against American communists and communist sympathizers. [2]   But all that detective work was mostly for naught, the author concludes.  “From a law enforcement or legitimate counterintelligence standpoint, the information accumulated . . . had little value . . . because [it] either was illegally obtained . . . thus negating prosecution . . . or did not document the violation of a federal statute.” [3]   Or at least not a federal espionage statute—under the Smith Act’s sedition provisions, Communist Party leaders were indicted and convicted for conspiring to overthrow the US government by force or violence.
In some instances, the FBI’s only information came from the ultra-secret decrypts of Soviet communications from the VENONA project, which had to be protected.  Los Alamos physicist Ted Hall provides the best example of the FBI having a spy dead to rights, but not being able to arrest him because it needed to conceal its source.  If collateral information were available, as with the Rosenbergs, then prosecution could go ahead. [4]  Most of the Bureau’s dilemma was of its own making; the problem was less one of compromising sensitive sources than of having to disclose that the incriminating information on which a case hinged was acquired illegally.  In short, improper methods impeded law enforcement; investigatory means took control of justiciary ends.
Theoharis presents another reason why the FBI was better at catching criminals than at tracking spies.  Its “massive monitoring of the American Communist Party and other left-wing political and labor union organizations from the 1920s on . . . focused not on espionage but on Communist influence in American society.”  For example, a large program that targeted the Communist International apparatus in the United States showed that American communists advocated radical political, social, and economic change, and received money from their Soviet sponsors, but that very few committed espionage for Moscow.  Even when they had, they could not be prosecuted because the information against them was acquired illegally.  Most of the few “real spies” the FBI uncovered had stopped their clandestine work by the time they were caught, but the Bureau—trapped in another counterintelligence dilemma of never being able to prove the negative—kept investigating Soviet fronts, leftist organizations, and Stalin apologists in the off-chance that it might find a stray agent or two.
The reason for the FBI’s persistence, Theoharis writes, was political and ideological.  Hoover was more concerned with educating the American people about the “Red Menace” than about putting Soviet spies in jail. As depicted in Chasing Spies, Hoover was less a conservative anti-communist than a reactionary countersubversive. [5]   He passed on derogatory information about the radicals his agents had under surveillance to a network of ideological kinsmen in politics and journalism whom he cultivated assiduously.  Through FBI officials’ covert alliance with selected congressmen, congressional committees, and reporters and columnists, the Bureau had put itself in a win-win situation. [6]   It could hide its counterintelligence shortcomings behind a wall of secrecy and national security while Democratic administrations got blamed for not doing enough to stop Soviet espionage and communist subversion. [7]
Although Theoharis has compiled a troubling account of FBI abuses, he overstates the extent to which the Bureau still operates in Hoover’s shadow.  Potential targets of FBI counterterrorism investigations probably have more to fear from xenophobic vigilantes than from Bureau superpatriots.  Undoubtedly FBI agents will make mistakes, especially in the frenzy after a major attack, but the vast majority of its errors seem more likely to result from bureaucratic inertia, institutional culture clashes, outdated technology, and a steep learning curve than from any ideological fixation.
Theoharis did not set out to write a comprehensive history of FBI counterintelligence from the late 1930s to the mid-1950s, but his focus on the Soviet Union nonetheless leaves some important questions unanswered.  He could, for example, have usefully compared the Bureau’s anti-Soviet operations with its work against German, Japanese, and Italian spies and “fifth columnists” in the United States during World War II.  By all accounts, Hoover’s G-Men shut down Axis espionage and subversion networks quickly using traditional detective methods that led to prosecutions and convictions.  Why was the FBI more successful against those targets?  Why did it not have to use the same battery of illegal techniques against the fascists that it did against the communists?  Were the Axis nations’ operations run differently, or were the Soviets’ activities harder to uncover and interdict, or did the Bureau apply a double standard in dealing with the respective threats?
Chasing Spies is much more effective at detailing the FBI’s transgressions than at dealing with the massive and incontrovertible evidence of Soviet espionage in America during the 1930s and 1940s that has accumulated in the past decade. [8]   Theoharis goes awry when he tries to find a historiographical peg on which to hang his latest research on the Bureau, which can stand well enough on its own.  In a semi-polemical preface, he takes some unwarranted shots at post-Cold War studies of Soviet spying that are based on VENONA decrypts and documents from KGB and Comintern archives.  (The GRU’s archives remain closed.) [9]   It is true that parts of this genre have a score-settling bite and a “we always told you so” smugness, and occasionally the writers overreach when interpreting vague or limited evidence.  Overall, however, they have demonstrated conclusively that Moscow had seeded the United States far and wide with spies and sympathizers whose theft of secrets and influence on policy damaged US national security, a conclusion that Theoharis himself actually shares. [10]   In counterpoint to this scholarship, some left-wing historians and what may be called “VENONA deniers” have accused the post-Cold War espionologists of flawed research and assorted political biases—“liberal anticommunism,” “right-wing triumphalism,” and, worst of all, “McCarthy rehabilitation.” [11] 
Theoharis accepts that the Americans so prominently accused of spying for Moscow—Alger Hiss, the Rosenbergs, et al.—were guilty.  He does not try to obscure the issue, as VENONA’s most dogged critic, Victor Navasky of The Nation, has by saying that they were “innocent of whatever it is people mean by espionage.” [12]   But some of his reasoning follows the general progression most VENONA deniers have undergone:  First, resist accepting that Americans did much spying for the Soviets; next, when presented with evidence that they did, carp at the details, stress any inconsistencies or ambiguities, and urge caution at reaching conclusions based on one source; finally, when shown corroboration for VENONA, claim “what’s new?” and argue that the spying had little effect on anything important.
This “so what?” argument—that Soviet spies did not steal much of value, so we should not have worried so much about them—is fallacious.  Besides assuming that the secrets stolen were not that valuable, the argument is flawed by ex post facto reasoning.  How could we have determined what damage Soviet agents caused without investigating them?  Even granting some of the “so what?” view, the deterrent effect that the US government’s counterintelligence work had must be taken into account.  If the Soviet espionage network had not been so badly disrupted by the late 1940s, future spies might have done much greater harm than those who got caught.
In attempting to discredit the work of the revisionists, Theoharis sometimes argues like a defense lawyer trying to keep incriminating evidence from a jury.  Especially when discussing some of the celebrated spy cases of the early Cold War—for example, Hiss, Elizabeth Bentley, and staff members of the journal Amerasia—he places more emphasis on the questionable means used to acquire the information than on what it reveals:  that the accused were guilty as charged.  Illegally obtained facts may not be admissible in court, but the Bureau’s methods and motives should not deter historians from using all information to reach their conclusions.  The evidentiary standards of legal proceedings and historical writing differ.
In the mid-1990s, ahead of the wave of books informed by VENONA and Soviet documents, historian Maurice Isserman wrote:  “That espionage has suddenly emerged as the key issue in the debate over American communism probably has as much to do with marketing strategy as with any reasoned historical analysis.” [13]   The voluminous new information on Soviet espionage in America before, during, and after World War II has disproved Isserman’s observation except to a dwindling band of ideological holdouts.  Theoharis, through his industrious mining of that and other material, now adds an important perspective on a troubling manifestation of official anti-communism in those years.  Chasing Spies offers a worthwhile admonition against politicized law enforcement and counterintelligence—and, in its few less scholarly moments, against politicized history, also.
Footnotes:
[1] Bill Miller, “Ashcroft:  Old Rules Aided Terrorists,” The Washington Post, 31 May 2002, p. A13; Edward P. Lazarus, “At the F.B.I., It’s Always Been Washington vs. the Field,” New York Times, 11 August 2002, sec. 4, p. 4.
[2] The Foreign Intelligence Surveillance Act of 1978 and the Patriot Act of 2001 expanded the FBI’s authority to use those techniques in counterintelligence investigations.  The US Foreign Intelligence Surveillance Court of Review affirmed the Bureau’s powers in a November 2002 decision.
[3] Chasing Spies, p. 140.
[4] This dilemma has been well described in what remains the best book on the FBI and counterintelligence:  Robert Lamphere and Tom Shachtman, The FBI-KGB War (New York, NY:  Random House, 1986).
[5] Theoharis’s portrayal of Hoover resembles that by Richard Gid Powers in Secrecy and Power:  The Life of J. Edgar Hoover(New York, NY:  The Free Press, 1987) and Not Without Honor:  The History of American Anticommunism (New York:  The Free Press, 1995).
[6] Chasing Spies, p. 198.
[7] On the last point, Theoharis asks, “Did President Roosevelt’s indifference make possible Soviet espionage, and did President Truman’s partisanship or indifference foreclose FBI investigations of Soviet espionage activities that could have ensured the prosecution of guilty spies?” He answers both questions, “No.”
 (Ibid., p. 33.)
[8] In this respect, Theoharis’s book is an FBI-centered case study that complements Ellen Schrecker’s more expansive treatment of official anti-communism during the “Second Red Scare” of 1945-1955, Many Are the Crimes:  McCarthyism in America (Boston, MA:  Little, Brown, 1998).
[9] Major works in this group include:  Joseph Albright and Marcia Kunstel Albright, Bombshell:  The Secret Story of America’s Unknown Atomic Spy Conspiracy (New York, NY:  Times Books, 1997); Christopher Andrew and Vasili Mitrokhin, The Sword and the Shield:  The Mitrokhin Archive and the Secret History of the KGB (New York, NY:  Basic Books, 1999); Robert Louis Benson and Michael Warner, Venona:  Soviet Espionage and the American Response, 1939-1957 (Washington, DC:  National Security Agency and Central Intelligence Agency, 1996); John Earl Haynes and Harvey Klehr, VENONA:  Decoding Soviet Espionage in America (New Haven, CT:  Yale University Press, 1999); Harvey Klehr, John Earl Haynes, and Fridrikh Igorevich Firsov, The Secret World of American Communism (New Haven, CT:  Yale University Press, 1995); Kathryn S. Olmsted, Red Spy Queen:  A Biography of Elizabeth Bentley (Chapel Hill, NC:  University of North Carolina Press, 2002); Ronald Radosh and Joyce Milton, The Rosenberg File:  A Search for the Truth, 2nd ed. (New Haven, CT:  Yale University Press, 1997); Herbert Romerstein and Eric Breindel, The Venona Secrets:  Exposing Soviet Espionage and America’s Traitors (Washington, DC:  Regnery, 2000); Jerrold and Leona Schecter, Sacred Secrets:  How Soviet Intelligence Operations Changed American History (Washington, DC:  Brassey’s, 2002); Sam Tanenhaus, Whittaker Chambers (New York, NY:  Random House, 1997); Allen Weinstein, Perjury:  The Hiss-Chambers Case (New York, NY:  Random House, 1997); Allen Weinstein and Alexander Vassiliev, The Haunted Wood:  Soviet Espionage in America—The Stalin Era (New York, NY: Random House, 1999); and Nigel West, VENONA:  The Greatest Secret of the Cold War (London:  Harper Collins, 1999).
[10] Useful evaluations of the above-cited literature are:  John Earle Haynes, “The Cold War Debate Continues:  A Traditionalist View of Historical Writing on Domestic Communism and Anti-Communism,” Journal of Cold War Studies, 2:1 (Winter 2000), pp. 94-113; Hayden Peake, “The VENONA Progeny,” Naval War College Review, 53:3 (Summer 2000), pp. 195-206; Thomas Powers, “The Plot Thickens,” The New York Review of Books, 11 May 2000, pp. 53-58; and Jacob Weisberg, “Cold War Without End,” New York Times Magazine, 28 November 1999, <<a href="http://www.nytimes.com/library/magazine/home/19991128mag-weisberg.html" rel="nofollow">www.nytimes.com/library/magazine/home/19991128mag-weisberg.html</a> >.
[11] The Nation has been the principal venue for criticism of the new history on Soviet espionage; see, e.g., Ellen Schrecker and Maurice Isserman, “The Right’s Cold War Revision:  Current Espionage Fears Have Given New Life to Liberal Anticommunism,” 271:4 (24 July 2000), pp. 22ff; and Victor S. Navasky, “Cold War Ghosts:  The Case of the Missing Red Menace,” 273:3 (16 July 2001), pp. 36ff.
[12] Quoted in Weisberg, “Cold War Without End.”
[13] Ibid.

David Robarge is a member of CIA’s History Staff.
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